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  • JA Armour, J Gordon and G Min, 'Taking Compliance Seriously' (2020) 36 Yale Journal on Regulation 1
    How can we ensure corporations play by the “rules of the game”—that is, laws encouraging firms to avoid socially harmful conduct? Corporate compliance programs play a central role in society’s current response. Prosecutors give firms incentives—through discounts to penalties—to implement compliance programs that guide and monitor employees’ behavior. However, focusing on the incentives of firms overlooks the perspective of managers, who decide how much firms invest in compliance. We show that stock-based pay, ubiquitous for corporate executives, creates systematic incentives to short-change compliance. Compliance is a long-term investment for firms, whereas managers’ time horizon is truncated to the date they expect to liquidate stock. Moreover, investors find it hard to value compliance programs because firms routinely disclose little or nothing about their compliance activities. We show that stock-compensated managers prefer not to disclose compliance because such disclosure can reveal private information about a firm’s propensity to misconduct. As a result, both managers and markets are likely myopic about compliance. How can this problem be resolved for the benefit of society and shareholders? Boards of directors are supposed to act as monitors to control managerial agency costs. We show that the increasing use of stock-based compensation for directors, justified as a means of encouraging more vigorous oversight of business decisions, also has a corrosive effect on boards’ monitoring incentives for compliance. Directors in theory face liability for compliance oversight failures, but only if so egregious as to amount to bad faith. We argue that this standard of liability, established in an era before ubiquitous stock-based compensation for both managers and directors, has now become too lax. We propose more assertive directors’ liability for compliance failures, limited in quantum to a proportionate clawback of stock-based pay. This would add power to the alignment of directors’ interests with those of shareholders—directors would stand to lose more than just a decrease in the value of their stock in the event of a compliance failure—but limiting liability in this way would avoid pushing boards to overinvest in compliance. We outline ways in which this proposal could be implemented either by shareholder proposals or judicial innovation.
  • E Fisher, 'Executive Environmental Law' (2020) 83 Modern Law Review 163
    DOI: 10.1111/1468-2230.12456
    The Draft Environment (Principles and Governance) Bill published by DEFRA in late 2018 is part of a process of reimagining environmental law in light of Brexit. The Draft Bill creates frameworks for policy statements on environmental principles and environmental implementation plans, as well as creating a new enforcement body – the Office for Environmental Protection. This Draft Bill is, at the very least, an ineffectual response to the challenges of environmental law post‐Brexit. More alarmingly, it raises the possibility of a legal future in which the executive dominates how the norms, ambitions, and accountabilities of environmental law are defined. These are matters of concern for environmental and public lawyers alike.
    ISBN: 1468-2230
  • P Eleftheriadis, A Union of Peoples: Europe as a Community of Principle (Oxford University Press 2020) (forthcoming)
  • P Eleftheriadis, 'Corrective Justice Among States' (2020) Ius Cogens (forthcoming)
    The debate concerning solidarity and justice among states has missed the key contribution made to international affairs by corrective justice. Unlike distributive justice, which applies within states, corrective justice applies among states and in particular to cooperative arrangements creating interdependence among them. Corrective justice does not require fairness in outcomes, but only fairness in the risks and opportunities undertaken by the parties to any cooperative agreement. Corrective justice requires redress in cases of loss caused by unfairness. An important illustration of corrective justice at work is the Eurozone’s response to the financial crisis. The assistance offered to the states most burdened by financial turmoil can be best interpreted not as an attempt to arrive at fair shares, but as an attempt to remedy the losses unfairly caused to some states by the mistakes made by all of them, when designing the Eurozone’s architecture.
    ISBN: ISSN: 2524-3977
  • JA Armour, B Garrett, J Gordon and G Min, 'Board Compliance' (2020) 104 Minnesota Law Review 101
    What role do corporate boards play in compliance? Compliance programs are internal enforcement programs, whereby firms train, monitor and discipline employees with respect to applicable laws and regulation. Corporate enforcement and compliance failures could not be more high-profile, and have placed boards in the position of responding to systemic problems. Both case law on boards’ fiduciary duties and guidance from prosecutors suggest that the board should have a continuing role in overseeing compliance activity. Yet very little is actually known about the role of boards in compliance. This paper offers the first empirical account of public companies’ engagement with compliance at the board level, drawing on director-level data from BoardEx and data on federal organizational prosecutions from the Duke University and University of Virginia Corporate Prosecution Registry. We find that, despite a standard account that compliance has boomed, few boards actually adopt compliance committees. Less than five per cent of U.S. public companies have done so, although the proportion has grown steadily over time. We use our data to explore why boards establish compliance committees. Our results suggest that there is room for more constructive engagement with compliance by many boards. We conclude by recommending ways in which board compliance might be facilitated or encouraged: reconsidering norms about board size and independence, enhancing accountability of directors to regulators, and tightening state law fiduciary duties regarding oversight.
  • P Eleftheriadis, 'Book Review: EU Legal Acts ' (2020) Common Market Law Review [Review] (forthcoming)
  • Maurice Stucke and A Ezrachi, Competition Overdose - How Free Market Mythology Transformed Us from Citizen Kings to Market Servants (HarperCollins 2020)
    Using dozens of vivid examples to show how society overprescribed competition as a solution and when unbridled rivalry hurts consumers, kills entrepreneurship, and increases economic inequality, two free-market thinkers diagnose the sickness caused by competition overdose and provide remedies that will promote sustainable growth and progress for everyone, not just wealthy shareholders and those at the top. Whatever illness our society suffers, competition is the remedy. Do we want better schools for our children? Cheaper prices for everything? More choices in the marketplace? The answer is always: Increase competition. Yet, many of us are unhappy with the results. We think we’re paying less, but we’re getting much less. Our food has undeclared additives (or worse), our drinking water contains toxic chemicals, our hotel bills reveal surprise additions, our kids’ schools are failing, our activities are tracked so that advertisers can target us with relentless promotions. All will be cured, we are told, by increasing the competitive pressure and defanging the bloated regulatory state. In a captivating exposé, Maurice E. Stucke and Ariel Ezrachi show how we are falling prey to greed, chicanery, and cronyism. Refuting the almost religious belief in rivalry as the vehicle for prosperity, the authors identify the powerful corporations, lobbyists, and lawmakers responsible for pushing this toxic competition—and argue instead for a healthier, even nobler, form of competition. Competition Overdose diagnoses the disease—and provides a cure for it.
  • P Eleftheriadis, 'Cosmopolitan Legitimacy' in Jorge Fabra (ed), Jurisprudence in a Globalized World (Edward Elgar 2020) (forthcoming)
  • N. W. Barber, 'Entrenchment' in R Bellamy and J King (eds), The Cambridge Handbook of Constitutional Theory (Cambridge University Press 2020) (forthcoming)
  • JA Armour and H Eidenmueller, 'Self-Driving Corporations?' (2020) 10 Harvard Business Law Review 201
    What are the implications of artificial intelligence (AI) for corporate law? In this essay, we consider the trajectory of AI’s evolution, analyze the effects of its application on business practice, and investigate the impact of these developments for corporate law. Overall, we claim that the increasing use of AI in corporations implies a shift from viewing the enterprise as primarily private and facilitative, towards a more public, and regulatory, conception of the law governing corporate activity. Today’s AI is dominated by machine learning applications which assist and augment human decision-making. These raise multiple challenges for business organization, the management of which we collectively term “data governance.” The impact of today’s AI on corporate law is coming to be felt along two margins. First, we expect a reduction across many standard dimensions of internal agency and coordination costs. Second, the oversight challenges—and liability risks—at the top of the firm will rise significantly. Tomorrow’s AI may permit humans to be replaced even at the apex of corporate decision-making. This is likely to happen first in what we call “self-driving subsidiaries” performing very limited corporate functions. Replacing humans on corporate boards with machines implies a fundamental shift in focus: from controlling internal costs to the design of appropriate strategies for controlling “algorithmic failure,” that is, unlawful acts by an algorithm with potentially severe negative effects (physical or financial harm) on external third parties. We discuss corporate goal-setting, which in the medium term is likely to become the center of gravity for debate on AI and corporate law. This will only intensify as technical progress moves toward the possibility of fully self-driving corporations. We outline potential regulatory strategies for their control. The potential for regulatory competition weakens lawmakers’ ability to respond, and so even though the self-driving corporation is not yet a reality, we believe the regulatory issues deserve attention well before tomorrow’s AI becomes today’s.
  • A Briggs, The Conflict of Laws (4th edn Oxford University Press (Clarendon Law Series) 2019)
    Fully updated and rewritten account of the rules of Private International Law as these appear in the ghastly uncertainty of 2019.
    ISBN: 9780198845232
  • JA Armour, 'Derivative Actions: A Framework for Decisions' (2019) 135 Law Quarterly Review 412
  • S Fredman, ' Taxation as a Human Rights Issue: Gender and Substantive Equality' in Alston P and Reisch N (eds), Tax, Inequality and Human Rights (Oxford University Press 2019)
    DOI: 10.1093/oso/9780190882228.003.0004
    This chapter suggests a four-dimensional conception of substantive equality to evaluate the gendered impacts of taxation policies from a human rights perspective. The four-dimensional framework of substantive equality in relation to gender regards the right to equality as aiming to, first, redress disadvantage (the redistributive dimension); second, address stigma, stereotyping, prejudice, and hatred (the recognition dimension); third, facilitate participation and voice (the participative dimension); and, fourth, accommodate difference and transform gendered structures in society (the transformative dimension). This multidimensional conception of substantive equality functions as a valuable tool in evaluating taxation systems for their impact on gender. The chapter then looks at two particularly challenging aspects of taxation and gender: the role of care work, and the role of value-added tax (VAT) and other indirect taxes.
  • A Briggs, 'Brexit and Private International Law: an English Perspective' (2019) Rivista di diritto internazionale privato e processuale 261
    Analysis of the effect of Brexit on private international law and litigation in the English courts, taking a more sane and balanced approach to the possible outcomes of that process than that which is usually produced by those with different axes to grind.
  • P P Craig, 'Brexit and the UK Constitution' in J Jowell and C O’Cinneide (eds), The Changing Constitution (Oxford University Press 2019)
  • J Rowbottom, 'Careful what you wish for: press criticism of the legal protection of human rights' in M. Farrell E. Hughes and E. Drywood (eds), Human Rights in the Media: Fear and Fetish (Routledge 2019)
  • A Ezrachi and Viktoria H.S.E. Robertson, 'Competition, Market Power and Third-Party Tracking' (2019) World Competition
    The prevalence of third-party tracking in our modern ecosystem cannot be ignored. Trackers, on our websites and apps, enable multi-sourced data gathering, at distinct volume, velocity, verity and veracity. While operated by numerous operators, the majority of these trackers are controlled by a handful of data giants. In this paper we consider the rise and growth of this industry, the power it has bestowed on a handful of operators, and the possible implications to consumer welfare and competition.
  • P P Craig, 'Constitutional Identity in the UK: An Evolving Concept ' in C Calliess and G van der Schyff (eds), Constitutional Identity in a Europe of Multilevel Constitutionalism (Cambridge University Press 2019)
  • P P Craig, 'Constitutional Principle, the Rule of Law and Political Reality: The European Union (Withdrawal) Act 2018 ' (2019) 82 Modern Law Review 319
  • P P Craig, 'Democracy ' in R Masterman and R Schutze (eds), The Cambridge Companion to Constitutional Law (Cambridge University Press 2019)
  • P P Craig, 'Engagement and Disengagement with International Institutions: The UK Perspective' in C Bradley (ed), The Oxford Handbook of Comparative Foreign Relations Law (Oxford University Press 2019)
  • E Fisher, Bettina Lange and Eloise Scotford, Environmental Law: Text, Cases and Materials (2nd Ed OUP 2019)
    ISBN: 9780198811077

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